WASHINGTON — President Trump broke the law “six ways from Sunday,” Jerrold Nadler, the Democratic chair of the House Judiciary Committee, said over the weekend.
On Wednesday, Nadler will finally get his chance to ask Special Counsel Robert Mueller whether he agrees.
Nadler and other House Judiciary Democrats plan to use Mueller’s landmark appearance before Congress to drive home a key point, according to members of Congress and staffers who spoke with VICE News: that Trump committed crimes that would have landed anyone else (who's not the president) in prison.
“If he found a crime, and I think he did, he has to say so”
Mueller, for his part, has indicated he’d like to stick to his report and stay away from such explicit opinions, but nothing in the law is actually stopping him from expressing one, former top Department of Justice officials and prosecutors told VICE News. In fact, some believe Mueller is now honor-bound to do so.
“I think duty requires that we hear what he thinks,” Donald Ayer, who held the No. 2 job in the DOJ under former Republican President George H. W. Bush. “He should not just write a report but actually tell the public what he believes, in his professional judgement, the evidence shows.”
For weeks, Congressional Democrats have been vigorously prepping for Mueller’s appearance, coordinating questions and even running mock-questioning sessions in hopes of milking every last minute with the famously tight-lipped prosecutor.
“I think we should ask him whether Trump committed a crime”
Members of the House Judiciary Committee plan to drill down on five key moments in Mueller’s report that they believe makes the case that Trump criminally obstructed the investigation.
Democratic House Judiciary staffers told VICE News that the top five focal points will be:
- When Trump told White House Counsel Don McGahn to fire Mueller
- When Trump told McGahn to publicly deny ever being told to fire Mueller
- When Trump told his former campaign chief Corey Lewandowski to tell former Attorney General Sessions to limit the investigation
- When Trump told Lewandowski to pass on a threat to Sessions that he might be fired if he didn’t meet with Lewandowski about Mueller
- The occasions when Trump engaged in potential witness tampering with Paul Manafort and Michael Cohen by dangling pardons and congratulating them for not flipping
Taken together these incidents demonstrate a damning pattern of obstruction, according to former prosecutors and legal experts.
All Mueller needs to say is that any one of them amounted to a violation of the law.
“I think we should ask him whether Trump committed a crime,” Rep. Eric Swalwell, a California Democrat who will question Mueller on both the House Judiciary and Intelligence Committees, told VICE News.
But hopes aren’t running high among Democrats that Mueller will actually go there.
“He’s too solid to be cracked under questioning,” Rep. Jackie Speier, a Democrat on the House Judiciary Committee, told VICE News. “He’ll never say outright that Trump committed a crime.”
Throughout his nearly two years at the helm of the Russia investigation, Mueller avoided the spotlight at all costs, speaking only through his indictments, and rarely offering public comments. He’s taken a similar approach since he filed his report in March, insisting that he will not go beyond what’s contained within it. (The DOJ is reportedly holding him to such promises.)
There’s precedent for his tight-lipped approach. Prosecutors traditionally refrain from making statements about whether they think suspects broke the law, if that person isn’t ultimately charged with a crime.
But the president’s case is special, said Charles Tiefer, who was deputy general counsel of the U.S. House of Representatives for 11 years before joining the University of Baltimore School of Law.
“I don’t put much stock in Mueller’s explanation that it would be unfair to Trump to name him as a criminal, because he has no opportunity to put on a defense in the courtroom,” Tiefer told VICE News. “As president, Trump has the biggest and loudest soundstage in the world to put on his defense.”
Mueller should weigh whether accusing Trump of breaking the law might raise conflict of interest concerns, or risk unfairly prejudicing the subject of an investigation, said Mary McCord, the former high-ranking DOJ official who helped oversee the investigation into foreign influence into the 2016 election before Mueller was appointed in May 2017.
“There was evidence sufficient to charge Trump with a crime”
“I think it is unlikely he would run afoul of these rules in the unique circumstances of this investigation, in which the Attorney General has made public almost all of Mr. Mueller's report, which recounts in great detail the evidence that would support criminal charges,” McCord told VICE News.
Others insist Mueller has a moral obligation to speak out.
James Brosnahan, a former prosecutor for the independent counsel during the Reagan-era Iran-Contra scandal, said Mueller now has a duty to express an opinion.
“He has to say what actually happened,” Brosnahan told VICE News. “If he found a crime, and I think he did, he has to say so.”
More than 1,000 former prosecutors have signed an open letter stating that Trump would have been charged with a crime if he weren’t the president.
“There was evidence sufficient to charge Trump with a crime,” said Paul Rosenzweig, a former member of Ken Starr’s investigation into former President Bill Clinton. “I see no legal barrier to Mueller saying that.”
Ayer argues that Mueller’s former boss, Attorney General William Barr, actually gave him a green light to take a personal stance on whether or not Trump committed a crime. He pointed to Barr’s CBS interview in May, in which Barr said Mueller “could have reached a decision as to whether it was criminal activity.”
“Mueller ought to feel very comfortable, and within the rules, to say, ‘OK, I was overruled, I’m now free to say what I think,’” said Ayer.
Cover: Special Counsel Robert Mueller prepares to speak at the Department of Justice Wednesday, May 29, 2019, in Washington, about the Russia investigation. (AP Photo/Carolyn Kaster)